| From the Wheelhouse
Lawrence A. Arcell, Section Chair
Watching the list server over the past year convinces me that this section's vitality has reached new levels. However, using the Internet is only one way to help our clients and practice.
One of the most important is meeting at the annual AAJ convention. I personally urge you to attend the 2001 Convention in Montreal for a number of reasons. Besides the obvious (networking, education), we need to demonstrate to AAJ that this section, the second oldest in AAJ, is strong.
To do this, attendance at the section's educational program is essential. Low attendance leads to the conclusion the members are not interested in the section. While we know this is not the case, as reflected by the list server, your personal presence at the convention will show AAJ our commitment.
Please accept my personal invitation to this year's meeting. Paul Sterbcow, our chair-elect, has prepared an excellent educational program with member of the bench and bar from across the country addressing important maritime issues. Also, this year the officers will be hosting a post-meeting party at the hotel.
Your attendance is important to all section officers and section members. The Supreme Court must consider admiralty law important considering it has addressed three cases in the past year. With the Senate contemplating changes in DOHSA, the Department of Transportation working on a recodification of Title 46, and the Department of State involved in the amending of the 1974 Athens protocol to possibly increase the rights of cruise ship passengers, the Admiralty Law section is an active group. Your attendance will insure that AAJ also realizes the Admiralty Law Section is robust and deserving. I will see you in Montreal.
RECENT DEVELOPMENTS IN ADMIRALTY LAW
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Circuit City Stores, Inc. v. Adams, ---U.S.---, 121 S. Ct. 1302 69 USLW 4195 (2001).
Supreme Court reaffirmed employment contracts of transportation workers, such as seamen, are exempt from the Federal Arbitration Act (FAA) 9 U.S.C. 1, et seq.
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001).
Vessel owner filed limitation proceeding. Lewis subsequently filed suit in state court under savings to suitors clause and did not request jury trial. Federal court stayed state court proceedings. Lewis moved to dissolve the restraining order, stating that he was the only claimant, waiving any res judicata claim concerning limited liability from a state court judgment, stipulating that respondent could relitigate limited liability issues in the District Court, and stipulating that his claim's value was less than the value of the limitation fund.
The Supreme Court held that state courts may adjudicate claims like Lewis' against vessel owners so long as the owner's right to seek limitation of liability is protected, thereby allowing a state court tort claim to proceed.
The savings to suitors clause in 1333(1) preserves common law remedies and concurrent state court jurisdiction over some admiralty and maritime claims. Although potential tension exists between the saving to suitors clause and the Limitation Act because one gives suitors the right to a choice of remedies while the other gives vessel owners the right to seek limited liability in federal court, the plaintiff is still allowed to go forward with the state court claim. Claimants generally have been permitted to proceed with their claims in state court where there is only a single claimant or where the total claims do not exceed the value of the limitation fund. The Supreme Court reaffirmed prior jurisprudence in this area of the law and that state courts, with all of their remedies, may adjudicate claims like Lewis' against vessel owners so long as the vessel owner's right to seek limitation of liability is protected. DEATH ON THE HIGH SEAS ACT (DOHSA)
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Garofalo v. Princess Cruises, Inc., 102 Cal. Rptr. 2d 754 (Cal. App. 2d Dist. 2000).
Plaintiff injured in shipboard fire. In March 1994, approximately 18 months after the cruise, Ms. Garofalo died as a result of medical conditions allegedly aggravated by the shipboard fire. Her employer intervened in her suit against cruise company, seeking subrogation from cruise company for sums it was obligated to pay plaintiff under workers' compensation law. The Court of Appeal found that the Death on the High Seas Act preempted employer's state law subrogation claim.
Jacobson v. Kalama Services, 2001 A.M.C. (D. HAWAII'I 2000).
Scuba diver died two miles off American territory. DOHSA applied to territorial waters and non-pecuniary damages disallowed.
Trinh v. Yamaha Boat Co., 122 F. Supp. 2d 1364 (S.D. Ga. 2000).
Plaintiff filed state court action, and defendant removed to federal court, asserting that case was governed by DOHSA. Court holds that DOHSA claim was not removable to federal court as federal question. A DOHSA claim is an admiralty claim, not a federal question, and therefore does not "arise under" laws of the United States for purposes of 1441(b). DOHSA statute expressly states that claims brought under the statute are admiralty in nature. Because this law indicates DOHSA claims are admiralty questions, such claims are not federal questions. LIMITATION OF LIABILITY ACT
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Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001).
See description in SUPREME COURT.
In Re Lebeouf Bros. Towing Co., Inc., (E.D. La. 2000) 2000 WL 1693688.
Limitation of liability stay lifted where plaintiff complies with all elements necessary to lift stay. Also, court concluded that the Limitation Act only guarantees a petitioner the right to limit liability exclusively in federal court. Exoneration is left to the forda of the claimant's choice.
In re Holly Marine Towing, Inc., 2001 WL 103431 (N.D. Ill., 2001).
Multiple plaintiffs filed maritime damage suit in state court. Defendant files limitation actions. Plaintiffs seek to have stay lifted to proceed with state court action, after filing certain stipulations. Defendant claimed this was limited to single claimant situations only. Court rejected this, noting "so long as the shipowner is protected, it should make no difference whether there is one claimant or ten."
Trico Marine Assets, Inc. v. Diamond Services Corp., 2001 WL 238135 (E.D. La. 2001).
Case provides explanation on how to contest the valuation of a vessel and increase amount of security in a limitation proceeding. SEAMAN STATUS
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Carrier v. Ensco International, Inc., 2001 WL 15640 (E.D. La. 2001).
Plaintiff filed claim under the general maritime law, the Jones Act, 33 U.S.C. 905(b), and the Sieracki Seaman Doctrine. Defendants moved the court to dismiss claims for lack of subject matter jurisdiction. Plaintiff found not to be a seaman. In 1998, ENSCO hired Johnson Rig Builders to provide a building crew to travel to Singapore to construct two new derricks, one of which was to be attached to the ENSCO 53 drilling vessel. Johnson hired plaintiff as a member of the building crew. During the project, the derrick crew slept in a hotel, ate on land, and did not board the ENSCO 53. All of the work plaintiff performed in Singapore was on land. Plaintiff was injured when he fell from one of the derricks, which was standing on a dock. The ENSCO 53 was undergoing a one-year renovation in the same shipyard. During the renovation, the ENSCO 53 had no galley and no living quarters. Plaintiff had been working on his current assignment for ENSCO for about two weeks when he was injured. He had worked on an ENSCO assignment about eight months earlier, which involved spending 42 hours of his 108 hours offshore. Between stints on ENSCO projects, plaintiff worked on project for Hercules Offshore, Pride Offshore, and BP Companies, while he was employed by Johnson. Plaintiff also worked for other rig building companies besides Johnson during the period he intermittently worked for Johnson. Further, during the year prior to his accident, plaintiff intermittently worked for the Shreveport Opera as a rigger, prop man, and truck driver.
Dean v. Ramos Corp., 781 So. 2d 796 (La. App. 5th Cir. 2001).
Worker sued employer under the Jones Act and vessel owner under general maritime law, alleging he injured his back while cleaning out bilge. Court of Appeal found plaintiff not a seaman at time of alleged injury and failed to prove accident occurred as he claimed. Plaintiff was a general land laborer, which included maintenance and cleaning work. Before working for his employer, a labor company, plaintiff worked directly as a deck hand, cook, and relief captain on vessels for other companies. During his employment with the labor company, plaintiff worked in a pipe yard, an aluminum salvage plant, and cleaned the holds of vessels. For six days during August, one day in October, and several days in November 1994, Plaintiff worked at two facilities owned by Oceaneering cleaning the yards, draining the dive tanks used for diver training, washing trucks, and doing other odd jobs around the facilities and around the house of the Port Captain at the Berwick dock yard.
On November 7, 1994, plaintiff was assigned to the M/V OCEAN INSPECTOR II, a vessel owned by Oceaneering, as a temporary cook to replace the permanent cook who was on vacation. The vessel is a small utility dive boat used primarily to transport divers employed by the company. Plaintiff was on the boat for two days. Plaintiff was injured on his first day on the vessel.
Goulas v. Denbury Management, Inc., 774 So. 2d 346 (La. App. 3d Cir. 2000).
Employee brought action under Jones Act. Court of Appeal found plaintiff entitled to hearing on Jones Act status after trial court dismissed petition based on ex parte motion by defendant. Plaintiff employed by defendant as an oil and gas gauger. His work involved checking the readings of gauges on oil and natural gas wells, located in different navigable waterways along the Atchafalaya River, a navigable body of water in Louisiana. At the beginning and at the end of each work day, plaintiff travelled in a 23-foot boat between a landing and the oil and gas field. Each one-way trip required approximately 50 to 60 minutes of travel time. The vessel was owned by defendant. During the day, plaintiff used the vessel to travel to the sites where the various gauges were located where he would read the gauges on the wells. He would then dock the vessel at the production facility, draft his reports on the gauge readings on the natural gas wells, and fax those reports to defendant. He would then get back on the vessel and traverse other navigable bodies of water to check the gauges on the oil wells. After checking the oil well gauges, he would navigate the vessel back to the production facility to verify that the oil from the wells in the field was flowing properly into the storage tanks at the facility.
In Re: Endeavor Marine, Inc.,, 234 F.3d 287 (5th Cir. 2000).
Fifth Circuit reverses district court and rules that seaman status does not require that duties "literally carry him to the sea." As a matter of law, plaintiff crane operator was a Jones Act seaman. Plaintiff sustained injuries when he was struck by a mooring line while working aboard a derrick barge. Plaintiff received LHWCA benefits. He filed a Jones Act suit in Louisiana state court. Limitation action filed in federal court. His employer argued in the limitation that there could be no Jones Act liability because plaintiff was not a "seaman." Court found derrick barge was a vessel in navigation and plaintiff's connection with it was substantial in time and duration, given that he spent almost all of his time working on the vessel in the eighteen months prior to his accident, his primary responsibility was to operate the cranes on board a vessel whose sole purpose is to load and unload cargo vessels, and, in the course of his employment, plaintiff was regularly exposed to the perils of the sea. Fifth Circuit concludes Papai and Chandris do not require that seaman's duties "literally carry him to sea"
Knight v. Grand Victoria Casino, 2000 WL 1434151 and 2000 WL 1898843 (N.D. Ill. 2000).
Seaman status issue as to what constitutes being service to the vessel. Also, jury instruction including a "perils of the sea" seaman status requirement rejected. Plaintiff worked for defendant as a games dealer on a riverboat casino docked on the Fox River near Elgin, Illinois. She also served as a "cultural ambassador," training new employees and participating in orientation seminars, as well as serving as an informational resource for new employees while she was on the job dealing cards. Plaintiff drove to the casino to attend a cultural ambassador training class at defendant's land-based pavilion, a building connected on one side via a covered walkway to a parking garage used by casino patrons and connected on the other side to the dock where the casino boat was moored. She was not scheduled to work as a dealer that day; defendant would pay her that day solely for attending the training class. Before clocking or signing in, plaintiff slipped on some ice on the walkway between the parking garage and the pavilion and fell. Court concluded that the training class constituted being in service of the vessel for seaman status purposes. Further, defendant's request to modify jury instruction to include a "perils of the sea" seaman status requirement rejected. The Court concluded Papai and Chandris do not support the modification that defendant proposed.
Scott v. MGI America, Inc., 2001 WL 197050 (N.D. Ill. 2001).
Plaintiff injured while working on safety equipment for the ship Trump Casino. Incident occurred in Buffington Harbor, Indiana. Plaintiff, then employed by MGI, was directing a life raft drill for the vessel. After the drill, was lifted to pier by shore-based crane. While being removed from the water and lifted onto the pier, the life raft struck plaintiff, who was standing on the pier, injuring him. Plaintiff did not satisfy the substantial connection to a specific vessel in nature and duration test for status. There was no proof plaintiff was ever aboard or involved with the vessel prior to the accident and no evidence showing or implying that plaintiff anticipated further duty in the service of vessel after the lifeboat drill. VESSEL STATUS
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Barrentine v. Schlumberger Technology Corp., (S.D. N.Y. 2000) 2000 WL 1760812
Seaman filed suit under Jones Act and general maritime law. Court denied defendant's summary judgment that claims suit should be dismissed because vessel was not in navigation and defendant was not the owner. Plaintiff injured while working aboard a mobile offshore drilling rig, while it was docked in Singapore Harbor for reconfiguration and repair. Defendant did not presented sufficient facts to find that, as a matter of law, the vessel was not in navigation for Jones Act purposes at the time of the alleged accident. Further, defendant was the owner pro hac vice of the vessel at the time of the accident because its employees were assigned to it, thus making the vessel managed by and in the control of defendant.
Barner v. The Missouri Gaming Co., 2001 WL 434906 (Mo. App. W.D. 2001).
Riverboat casino patron brought personal injury suit against casino. Incident occurred on June 16, 1995. Suit filed April 1, 1999. Case dismissed as suit was filed more than three years after incident. Maritime law applies as riverboat was a vessel. This is the same vessel as in the Davis v. the Missouri Gaming Co., infra.
Channel v. Grand Isle Shipyard, Inc., 2001 WL 515220 (E.D. La. 2001).
Plaintiff filed a Jones Act claim in state court after being injured on the Genesis Spar, which he claimed was a vessel. Defendant removed the claim, contending the Spar was not a vessel, but designed solely as a work platform. The Spar was anchored above wellheads by 14 steel chain/wire rope anchor lines, which in turn were connected to pilings driven 250 feet into the ocean floor; it has no organic means of propulsion; its movement is limited to a 50 to 140-foot range to allow for positioning near a wellhead; it has never been located in any other spot than its current location, where it is intended to stay until the oil reserves beneath it are exhausted, which is not predicted to occur for 20 years. Plaintiff did not produce evidence contrary to the above facts. The Court found plaintiff's Jones Act claim was fraudulently pled and not a bar to removal, as the structure was not a vessel.
Davis v. The Missouri Gaming Co., 2001 WL 504938, (Mo. App. W.D. 2001).
Plaintiff was employed by the Argosy Casino as a pit manager aboard its gaming casino, the Argosy IV Riverboat. Plaintiff filed a Jones Act and General Maritime Law claim. Trial court granted summary judgment by defendant claiming plaintiff's only remedy was in workers' compensation. On appeal, court reversed, saying issue of whether the casino was a vessel in navigation was for the jury. This is the same vessel as in the Barner v. Missouri Gaming Co., supra.
Lee v. Searex Mfg. LLC, 2001 WL 378689 (E.D. La. 2001).
Plaintiff filed suit under Jones Act and 33 U.S.C. 905(b) for injuries sustained while disembarking from a vessel gangway. Plaintiff lives aboard the vessel and did general maintenance work. The Coast Guard issued vessel a temporary certificate of inspection one day after plaintiff's accident. That same day, the vessel departed for Houma, Louisiana to load and transport sections of an offshore rig as part of its first job assignment. Defendant contended vessel was not a vessel in navigation at time of accident because it was still undergoing sea trials and that the Coast Guard had not issued a temporary certificate of inspection yet. The Court found vessel had completed her sea trials and had embarked on her second voyage and first job assignment the day after plaintiff's accident. As to 905(b) claim, there was no evidence that at the time of the accident, plaintiff was employed to provide shipbuilding, repairing, or breaking services. EXPERT WITNESSES/ DAUBERT
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Bachir v. Transoceanic Cable Ship Co., 2000 WL 1738409 (S.D. N.Y. 2000).
Motion in limine to bar testimony of treating psychiatrist. Motion denied. Plaintiff injured on May 5, 1998. Plaintiff claims serious multiple, physical and psychological injuries. The psychiatrist who treated plaintiff, beginning in May 1999, is a Diplomate of the American Board of Psychiatry and Neurology and is an Assistant Professor of Psychiatry at the Mount Sinai School of Medicine. He is also the Chief of Psychiatry at North Shore Hospital in Forest Hills and is in the private practice of psychiatry. He has diagnosed plaintiff as suffering from post-traumatic disorder. The defense bases its motion on the fact that the doctor did not adhere to the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Revision (DSM-IV). The doctor is an experienced psychiatrist who has been practicing for nearly 30 years.
Diefenbach v. Sheridan Transportation, 229 F.3d 27 (1st Cir. 2000).
Defendant's appeal of evidentiary rulings in Jones Act trial denied. Court properly instructed jury and properly admitted plaintiff's maritime expert's opinion where defendant waived any objection to its admission.
Holesapple v. Barrett, 246 F.3d 665 (Table)(4th Cir. 2001) (unpublished opinion).
Plaintiff retained an expert concerning negligent operation of a small power boat. The district court excluded the expert's affidavit. Plaintiff appealed the district court's refusal to consider plaintiff's expert's affidavit and entry of summary judgment for defendant. The Court of Appeal found no abuse of discretion in finding the expert's opinion unreliable. The expert's opinion did not rely on any of the standard indicia associated with the incident in question; there was no mention of weather reports, wave height, or complaints from other vessels in the immediate area. Without the expert opinion, only lay testimony was presented concerning defendant's negligence, which was insufficient to establish a standard of care against which to measure defendant's conduct.
Johnson v. Gulf Transportation, Inc., 2000 WL 1716270 (E.D. La. 2000).
Defendant filed motion in limine to exclude the expert testimony of plaintiff's marine safety expert and plaintiff's economic expert. Court allowed all the testimony except as to proximate cause and negligence. Plaintiff's safety expert is a United States Coast Guard licensed Master and Chief Engineer who served aboard Outer Continental Shelf support vessels performing the same operations which form the basis of this action in the waters on the Outer Continental Shelf in the Gulf of Mexico off of the coast of Louisiana and Texas.
Kendrick v. Illinois Central Railroad Company 2001 WL 30202 (E.D. La. 2001).
Plaintiff sought to argue that he might develop traumatic arthritis in the future. Plaintiff's doctor testified that plaintiff may develop traumatic arthritis in the future, but only suggested there is an increased possibility, but not a probability (not over 51%), that plaintiff will develop traumatic arthritis in the future as a result of his injury. Plaintiff contended that under FELA, this testimony was allowable. Plaintiff's case did not change the general rule nor did it create a special rule in a FELA/ Jones Act case.
Knowles v. Masco Operators, Inc., 2001 WL 79890 (E.D. La. 2001).
Plaintiff's motion to strike defendant's expert granted. Plaintiff injured when he was attempting to unmoor defendant's vessel from a sea buoy. Defendant's marine safety expert to testify that plaintiff failed to properly handle the mooring line. Court concluded the jury can determine whether plaintiff forgot to keep his foot clear of the mooring line or whether he became "complacent" in handling the line.
Knowles v. Masco Operators, Inc., 2000 WL 1843485 (E.D. La. 2000).
Defendant's motion in limine concerning plaintiff's expert as to seamanship denied. Plaintiff injured when he was attempting to unmoor defendant's vessel from a sea buoy. Plaintiff's expert to testify that defendant's captain: authorized an unsafe mooring procedure; used the wrong type of mooring line; and improperly moored the stern of the vessel instead of the bow. Court found the testimony is not within the common knowledge or experience of the average juror and that the average juror knows little or nothing about mooring practices in open seas, the best type of line to use, or whether a vessel should be moored by bow or stern.
Walsh v. South Port Marine Construction, Inc., 121 F. Supp. 2d 126 (D. Me. 2000).
Motion in limine denied where defendant sought to eliminate testimony concerning evidence regarding adequacy of supervision and training of worker, owner's safety policies, and whether it assigned adequate personnel to complete tasks assigned, as well as federal safety regulations applicable to employers. MAINTENANCE AND CURE
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Bavaro v. Grand Victoria Casino, 2001 WL 289782 (N.D. Ill. 2001).
Plaintiff slipped and fell on casino vessel. She sued vessel owner/employer for negligence, unseaworthiness, and for willful breach of its duty to pay maintenance and cure, and punitive damages. Court denied defendant's motion concerning maintenance and cure, finding an issue of fact as to whether plaintiff was in service of the vessel at the time of her injury. Defendant also granted the right to offset of maintenance and cure benefits for payments made plaintiff under defendant's health insurance plan where the payments would result in double recovery.
Cramer v. Sabine Transportation Co., 2001 WL 502482 (S.D. Tex. 2001).
"First, this is a bench trial, making any motion in limine asinine on its face. Motions in limine are intended to prevent allegedly prejudicial evidence from being so much as whispered before a jury prior to obtaining the Court's permission to broach the topic. In a bench trial, such procedures are unnecessary, as the Court can and does readily exclude from its consideration inappropriate evidence of whatever ilk."
Fawkner v. AAJntis Submarines, Inc., 135 F. Supp. 2d 1127 (D. Hawai'i 2001).
Plaintiff brought maintenance and cure claim. Court denied defendant's motion to dismiss because material fact questions as to whether employer's reduction of employee's maintenance payments constituted extreme and outrageous conduct or unconscionable abuse precluded summary judgment on the issue of whether employee could recover under general maritime law for intentional infliction of emotional distress relating to employer's alleged wrongful reduction of the maintenance payments.
Goodwin v. Weber Marine Inc., 782 So. 2d 1035, 2001 WL 55913 (La. App. 5th Cir. 2001).
Boat captain brought Jones Act claim against owner of vessel, alleging he was injured when he slipped and fell in diesel fuel on barge deck. Plaintiff was not entitled to recovery for cure on the medical bills paid by his own health insurer.
Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582 (5th Cir. 2001).
Appellate court affirms finding of $30.50 and $31.50 per day for maintenance. Plaintiff claimed he was entitled to maintenance calculated on expenses including home mortgage note. Fifth Circuit held that although maintenance was solely for the benefit of the injured seaman rather than his family, the mortgage note did not have to be pro-rated. Plaintiff actually paid the entire amount of the mortgage and this represented plaintiff's actual lodging costs. The actual costs were the proper basis for comparison with reasonable costs as between single seamen and those with a family. Costs of heat, electricity, and water, to the extent such expenses vary with the number of people in the household, can be prorated for purpose of maintenance, in the case of seamen living with their families.
Malta v. United States, 2001 WL 327594 (E.D. La., 2001).
Trial for maintenance and cure. Plaintiff injured his left knee in the course and scope of his work aboard the ship. Underwent first surgery, however, plaintiff contended it did not provide relief. Doctor released him to medium duty. Plaintiff underwent second surgery with another doctor. Court ordered defendant to pay for second surgery and maintenance. Where there is conflict between the doctors, ambiguities are resolved in favor of seaman.
Martinez v. Edison Chouest Offshore, Inc. 2001 WL 6726 (E.D. La. 2001).
Plaintiff seaman moves to sever his maintenance and cure claim from the rest of his complaint and for an expedited trial because he contends that his doctor has recommended that he undergo surgery. Defendant opposes an expedited trial before an earlier date because it claims that there are doubts whether plaintiff sustained a work-related injury and is entitled to maintenance and cure. Defendant contends that it needs time to obtain and evaluate relevant medical testimony. Motion granted. Plaintiff could sever claims because he is not obligated to join his claim for maintenance and the other general maritime law claims with his Jones Act claim.
Ripp v. Gulf South Marine Towing, Inc., 2001 WL 515253 (E.D. La. 2001).
Past due maintenance and cure and attorneys' fees awarded where defendants neither argued nor demonstrated that they acted reasonably in denying plaintiff maintenance and cure.
Wright v. Maersk Line, Ltd. 2001 WL 58003 (S.D. N.Y. 2001).
Seaman sued employer as a result of decision to put plaintiff ashore on the island of St. Helena to receive medical treatment. Plaintiff contended that decision resulted in him receiving poor medical care, and being stranded on the island for a considerable amount of time. While vessel was at sea proceeding from Diego Garcia to Puerto Rico, Wright informed the vessel's Chief Mate (and Medical Officer) that he was jaundiced and had abdominal pain. The mate monitored Wright's condition and consulted with an on-call medical service staffed by medical doctors to provide medical advice to ships at sea. It was recommended that Wright be put ashore on St. Helena and mate contacted the hospital. Defendant contends the decision to land Wright at St. Helena was proper because "St. Helena was . . . the nearest location with medical facilities and the Vessel could arrive there sooner than any other location . . . [while] Ascension Island had a sailing time of approximately forty additional hours past St. Helena." Plaintiff claims that the vessel was negligent in putting him ashore at St. Helena rather than Ascension Island because St. Helena has no airport and the only way off the island was by a boat which came every 28 days, and which had just left. "There are disputed issues of fact as to whether the decision to land Wright at St. Helena as opposed to Ascension Island was negligent or prudent. Indeed, in justifying why it was not necessary to helicopter Wright off the Vessel, Maersk notes that Wright's symptoms were in no way life threatening and . . . [h]is condition did not deteriorate during the December 26 through December 29 time period,' i.e., the period from his first complaint of illness until arrival at St. Helena. Since the Vessel felt that Wright was suffering from an apparent non-life threatening, flu-like illness' it is not clear why Maersk could not have waited the one to two days until the Vessel reached Ascension Island." Defendant's summary judgment denied as to negligence claim. Summary judgment on unseaworthiness claim granted because the only complaint was over the decision to put plaintiff ashore and the decision could constitute negligence, but not seaworthiness. 905(B) NEGLIGENCE
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Johnson v. Broken Hill Proprietary International Marine Transport Co., Ltd., 2001 WL 96390 (E.D.La. 2001).
Plaintiff longshoreman injured when he slipped on hydraulic fluid from hatch mechanism on deck during cargo operations. Court denies vessel owner's motion for summary judgment. Factual issues exist as to whether oil was open and obvious or a hidden defect and whether defect was in active control of vessel, where the operation of the hatch cover and its hydraulic system remained under the exclusive control of the vessel crew, and that the vessel crew opened and closed the hatch cover several times after the turn over and prior to plaintiff's fall.
Wiltz v. Maersk, Inc., 135 F. Supp. 2d 783 (S.D. Tex. 2001).
Plaintiff longshoreman was injured due to the ship's mate's interference with plaintiff's efforts to secure cargo aboard the vessel. The mate was attempting to reach an electrical cable on a cargo container and caused plaintiff to fall. Court denied defendant's motion to dismiss because under terms of charter party, time charterer could be held liable for injuries related to cargo unloading and fact issue existed as to defendant's status as time charterer.
Vadas v. J. Lauritzen Holdings, 2000 WL 1827350 (D. Conn. 2000).
Defendant moved for summary judgment where plaintiff claimed he was injured while working as a longshoreman loading and unloading cargo from defendant's vessel, when he fell from a steel ladder attached to a cargo crane aboard the vessel when a defective rung on the ladder broke. Granted because no genuine issue of material fact. No proof ladder was defective; defendant routinely inspected the ladder; defendant had no prior knowledge of any defect with the ladder. Further, there was no proof that defendant was involved in the cargo operation. PUNITIVE DAMAGES
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Doxey v. Lake Charles Pilots, Inc., 781 So. 2d 589 (La. App. 3d Cir. 2001).
Owner of truck that was damaged when wake from passing vessel lifted truck and trailer and pulled them into channel as truck was attempting to launch boat brought action for damages against vessel pilot's employer. Court of Appeal held that pursuant to Admiralty ext. Act, admiralty jurisdiction extended to truck owner's action, and accordingly, substantive admiralty law applied, and owner would be allowed to include alleged punitive damages in amount of damages sustained in order to meet jurisdictional amount required for jury trial.
LINER v. DRAVO BASIC MATERIALS COMPANY, ET AL. (E.D. La. 2000) 2001 WL 336983
Non-seaman plaintiffs could supplement their claims under general maritime law with applicable state law when an accident occurs in state territorial waters. Louisiana state law permits claims for loss of consortium. Under state law, punitive damages were available only in two specific instances, which did not apply in the instant case. However, general maritime law supported punitive damage claims where there were no conflicting federal statutes.
Tillman ex rel. Migues v. Singletary, (Miss. App. 2001) 2001 WL 268246
Recreational vessel accident. The Court of Appeals held that boat owner's consumption of three beers approximately four hours before accident did not justify jury consideration of punitive damages. MARITIME JURISDICTION
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Cammon v. City of New York, 721 N.Y.S. 2d 579 (N.Y. 2000).
Plaintiff sued defendant general contractor and city, alleging violations of state labor laws after he was injured while doing repair work on a floating raft on navigable waters, but where the raft was anchored to land and the repair work involved a land structure. Defendant general contractor and city moved for summary judgment on the ground that federal maritime law preempted state labor law. Appeals court finds causes of action not preempted by federal maritime law. Exercise of admiralty jurisdiction did not automatically mean state law was preempted and the "maritime but local rule" applied because even though plaintiff was on a floating raft in navigable waters, the raft was anchored to land and the repair was to a land structure.
LeBlanc v. Patton-Tully Transportation, L.L.C. 2001 WL 431694 (S.D. Tex. 2001).
Defendant's motion for lack of personal jurisdiction granted. Louisiana resident deckhand brought action against vessel owner under Jones Act to recover for injuries incurred while working on the Mississippi River. Court found that out-of-state work performed for a Texas business, but not in Texas, which accounted for 10 to 15 percent of Mississippi defendant's revenue, did not give rise, by itself, to general jurisdiction in Texas under Texas long-arm statue over defendant, and exercise of jurisdiction over owner would offend traditional notions of fair play and substantial justice. Defendant is a Mississippi Limited Liability Company. It has no offices in Texas and has not designated an agent for service of process in Texas. Further, court concluded it would be unreasonable to require defendant to litigate this dispute in Texas where action arose from an injury to a Louisiana resident in Mississippi while working for a Mississippi company and all the persons with knowledge of the facts presumably reside outside of Texas. REMEDIES
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Davis v. Tidewater Marine, Inc., 2001 WL 12111 (E.D. La. 2001).
Seaman plaintiff was discharged by defendant/employer. He filed suit under 42 U.S.C. 2000e for race discrimination. Defendant's motion to dismiss denied. Plaintiff refused to follow an order of his captain. He contended his discharge was discriminatory because the captain had previously used a racial slur in conversation with him on two related occasions. Specifically, he testified in deposition that the captain had used a racial slur in the plaintiff's presence a couple days before his discharge, and that the plaintiff went and talked to the captain about the use of the slur. Plaintiff also testified he felt the captain's order was unsafe, the captain disrespected him, and gave him more and unsafe work than white seamen. The plaintiff admitted that the use of this slur along with his belief that the task was unsafe lead to his refusal of the captain's order. Court found plaintiff presented direct proof of discrimination with his testimony that captain used a racial slur in his presence on one occasion, which the plaintiff discussed with the captain on a second occasion. Captain's derogatory comment also implied that the plaintiff should find a job elsewhere. This gives rise a genuine issue of material fact as to whether the captain was racially prejudiced and, out of racial animus, deliberately ordered this plaintiff to do tasks that were unsafe or demeaning in order to "set him up" to be fired if he did not obey.
Houghton v. M & F Fishing, Inc., 198 F.R.D. 666 (S.D. Cal. 2001).
Seaman brought personal injury suit based upon Jones Act negligence and unseaworthiness. Defendants' moved to compel a mental examination of the plaintiff. Court held that psychiatric examination was not warranted where seaman did not put his mental condition at issue and did not seek to recover damages for any mental or psychiatric injury or psychological condition caused by shipboard injury other than "garden-variety" emotional distress attendant to the occasion of the injury and the process of recovery therefrom.
Hutton v. Norwegian Cruise Line Ltd. (S.D. Fla. 2001) 2001 WL 273173
Plaintiffs filed suit against defendant Norwegian Cruise Line for injuries sustained when the cruise ship collided in the English Channel with cargo ship. Defendant moved for summary judgment against plaintiffs who fail to demonstrate a non-trivial physical manifestation of an emotional injury under the "zone of danger" test. The "zone of danger" test for negligent infliction of emotional distress does not include an additional prong requiring a physical manifestation of an alleged emotional injury.
Martinez v. Bally's Louisiana, Inc., 244 F3d 474, (5th Cir. 2001).
Plaintiff sued defendant/employer claiming sexual harassment, vilification and infliction of mental distress by her supervisor. Defendant filed a motion for summary judgment on the ground that plaintiff had no available remedy under the Jones Act because her claim stated purely emotional, non-physical injury without physical injury. Summary judgment upheld because plaintiff failed to claim physical injury nor was there evidence of physical injury.
Pullman v. Bouchard Transportation. Co., Inc., 2000 WL 1818503 (E.D. La. 2000).
Plaintiff claimed he developed post-traumatic stress disorder with a phobia of working over water after a particularly heavy storm where other crewmen were injured. Court granted defendant's motion for summary judgment to dismiss plaintiff's claims, because, as a matter of law, he may not recover damages for a purely emotional injury under the Jones Act or General Maritime Law. REMOVAL
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Caliste v. Akmar Shipping & Trading Co. 2001 WL 435586 (E.D. La., 2001).
Motion to remand granted where defendant unable to prove subject matter jurisdiction due to lack of jurisdictional amount of damages. Plaintiff filed suit in state court for personal injuries he sustained while working aboard a vessel owned and operated by Defendant. Defendant timely removed the suit based on diversity. Plaintiff moved to remand the case arguing that the amount in controversy does not exceed $75,000. In accordance with Louisiana law, the petition does not allege a specific amount of damages. On its face, petition does not provide sufficient basis for claim that amount in controversy exceeds $75,000. Medical evidence, showing plaintiff suffered a soft tissue strain of the back, neck, and right knee with medical bills totaling only $8,500 is also insufficient.
Morris, v. Princess Cruises, Inc., 236 F.3d 1061 (9th Cir. 2001).
Cruise ship passenger brought Texas state-court action against cruise ship and travel agency in connection with provision of medical services to her husband during cruise. After ship and agency removed action, passenger moved for remand and added non-diverse parties. Following denial of remand motion, and transfer of venue, summary judgment granted. On appeal, court held joinder of non-diverse party was fraudulent; plaintiff waived any defect in court's removal jurisdiction when she failed to request remand based on joinder of non-diverse defendants; and claim dismissal affirmed.
Rybolt v. Laborde Marine Lift, 2001 WL 263119 (E.D. La. 2001).
Seaman's action removed to federal court. Remand to state court granted. Plaintiff was employed as a crew member aboard a vessel. He was injured when the vessel was mooring at an offshore fixed platform. Plaintiff claimed that during the mooring of the vessel, the vessel was positioned near the platform so that fluid was discharged from the platform onto the deck of the vessel. Plaintiff contended he slipped on this fluid and fell to the deck during the mooring process. Defendants unable to show: the Jones Act claim had been fraudulently pled to defeat removal; there was no possibility that plaintiff would be able to establish a cause of action under the Jones Act. Remand also granted because plaintiff's claims arise from a single set of facts for which he seeks a single recovery, and therefore the claims against the vessel and platform are not separate and independent.
Simms v. Roclan Energy Services, Inc., 2001 WL 336811 (W.D. La., 2001).
Worker filed state court action against vessel, owner of offshore platform, and crane operator for injuries sustained while being lowered in basket by crane from offshore platform to vessel. After removal to federal court, worker moved to remand to state court. Since matter arose out of, or in connection with defendant's operation on the Outer Continental Shelf, case is governed by OCSLA. Further, none of the claims were separate and independent for purposes of 28 U.S.C. 1441(c), thereby precluding remand. Plaintiff was employed by Pneu as an electrical foreman to perform electrical installations and services for Walter on an offshore platform owned and operated by Walter. The platform was located approximately 50 miles off the Louisiana coast in the waters of the Gulf of Mexico. Defendant Roclan was a contractor for Walter doing welding, new equipment installations, finishing work, and construction on the offshore platform. Roclan employed the crane operator whose negligence plaintiff claims is the cause of his injuries. As plaintiff was being lowered from the platform to a vessel by means of a personnel basket attached to a crane located on the platform, he was injured when the basket was lowered onto the vessel in choppy seas. No personnel were present on the deck of the vessel to assist with the transfer of personnel.
Trinh v. Yamaha Boat Co., 122 F. Supp. 2d 1364 (S.D. Ga. 2000).
Plaintiff filed state court action, and defendant removed to federal court, asserting that case was governed by Death on the High Seas Act (DOHSA). Court holds that DOHSA claim was not removable to federal court as federal question. A DOHSA claim is an admiralty claim, not a federal question, and therefore does not "arise under" laws of the United States for purposes of 1441(b). DOHSA statute expressly states that claims brought under the statute are admiralty in nature. Because this law indicates DOHSA claims are admiralty questions, such claims are not federal questions. RELEASES
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Orsini v. O/S Seabrooke O.N., 247 F3d 953, 2001 WL 410031 (9th Cir. 2001).
Injured seaman signed release. The Court of Appeals reversed district court and found sufficient facts existed as to enforceability of release; seaman did not waive claims as to ship owner's future conduct; and fact issues existed as to whether owner contributed to delay in seaman's surgery, so as to breach terms of release. The district court had granted defendant's motion for summary judgment, ruling that in exchange for cure, earned wages, airfare home, and $500, the release was enforceable. The vessel captain claimed that plaintiff agreed that if captain would pay his cure, earned wages, airfare home, and $500, plaintiff would drop claim. Plaintiff denied this scenario. A release stated that defendant captain decided to give plaintiff the $500, by adding it to the terms of the Release, in recognition of plaintiff's "inconvenience." Plaintiff signed the release without consulting an attorney. Plaintiff claimed captain told him he could sign the Release and get off the ship, stay on the ship and work one more trip until replaced, or he could find a place to stay in Dutch Harbor until the weather improved and then find his way home. PREEMPTION
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Cammon v. City of New York, 721 N.Y.S.2d 579 (N.Y. 2000).
Plaintiff sued defendant general contractor and city, alleging violations of state labor laws after he was injured while doing repair work on a floating raft on navigable waters, but where the raft was anchored to land and the repair work involved a land structure. Defendant general contractor and city moved for summary judgment on the ground that federal maritime law preempted state labor law. Appeals court finds causes of action not preempted by federal maritime law. Exercise of admiralty jurisdiction did not automatically mean state law was preempted and the "maritime but local rule" applied because even though plaintiff was on a floating raft in navigable waters, the raft was anchored to land and the repair was to a land structure.
Crane v. Washington State, 2000 WL 468806 (unpublished opinion) (Wash. App. Div. 1, 2000).
Seaman claimed she contacted Hepatitis C after sticking her finger on a diabetic's lancet while cleaning a ferry passenger cabin as a result of defendant State's failure to follow regulations regarding blood borne pathogens. Summary judgment affirmed. Despite defendant's violation of applicable Washington State Industrial Safety and Health Act regulations on blood borne pathogens, the Pennsylvania rule did not apply to shift the burden on causation to defendant, as the violation pertained to a general safety statute instead of a maritime-specific statute.
Garofalo v. Princess Cruises, Inc., 102 Cal. Rptr. 2d 754 (Cal. App. 2d Dist. 2000).
See discussion under DEATH ON THE HIGH SEAS ACT.
Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000).
Wheelchair-bound customer sued foreign-flag cruise ship for violation of public accommodation provisions of Americans with Disabilities Act (ADA). In a per curiam decision, the Court of Appeals held that those parts of cruise ships which fall within the statutory definition of public accommodations are public accommodations for purposes of ADA and public accommodation requirements of ADA apply to foreign-flag cruise ships in United States waters. Plaintiff, who is confined to a wheelchair, decided to take a vacation aboard a cruise ship. Plaintiff saw an advertisement in a Florida newspaper for a cruise aboard a Bahamian-flag ship, owned and operated by Defendant. Plaintiff was assured that her cabin would be wheelchair-accessible. Plaintiff, however, was required to pay a fee in excess of the advertised price to obtain a purportedly wheelchair-accessible cabin. Plaintiff boarded the ship in Florida for her cruise. After the ship sailed, Plaintiff discovered that her cabin was not wheelchair-accessible. Plaintiff also found that many public areas of the cruise ship were inaccessible to persons in wheelchairs. The Court found a cruise ship may be a "public accommodation" under the ADA; Congress made no distinctions, in defining "public accommodation," based on the physical location of the public accommodation. Further, the Court found that a foreign flag ship in U.S. waters is not "extraterritorial," therefore allowing application of the statue. CHOICE OF LAW/FORUM NON CONVENIENS
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Ioannidis/Riga v. M/V Sea Concert, 132 F. Supp. 2d 847 (D. Or. 2001).
Suit brought against Cypriot-owned and Greek-managed vessel for injury sustained by Greek seaman while vessel was at anchor in Oregon. Vessel owner moved to dismiss. Court found that Lauritzen/Rhoditis factors dictated that foreign law, rather than Jones Act, applied to suit, and suit would be dismissed on forum non conveniens grounds.
Keramidas v. Profile Shipping Ltd., --- So2d ---, 2001 WL 360039 (La. App. 5th Cir. 4/11/01).
Action by wife of deceased foreign seaman who became ill while on his employer's ship in Louisiana port, was rejected because: (1) seaman's lack of membership in union that negotiated the maritime employment agreement was not sufficient alone to invalidate agreement's forum selection clause; (2) enforcement of the forum selection clause which required deceased seaman's wife and son to file action under the contract in Cyprus was not unjust and unreasonable; and (3) clause limited wife and son's survivorship claims to those allowed under the contract, even though wife and son were not parties to it.
Sawicki v. K/S Stavanger Prince and Assuranceforeningen Skuld, No. 99-1459 778 So. 2d 620 (La. App. 4th Cir. 12/27/00).
Plaintiff injured while working on a ship owned by defendant company. He received disability compensation pursuant to a collective bargaining agreement. Plaintiff sued defendant in Louisiana. Appellant challenged the trial court's decisions granting a continuance and partial summary to appellees and dismissing plaintiff's suit. The court held the trial had not begun at the time appellees filed the motion for summary judgment, and the motion did not violate La. Code Civ. Proc. Ann. Art. 966(D). Testimony by appellant was only for perpetuation purposes, and was not part of a formal trial. The court held the trial court properly enforced a forum selection clause in the collective bargaining agreement which specified either Norway or Poland as the forum for any suit. The collective bargaining agreement was incorporated into the employment contract signed by appellant. The court held that once appellant collected disability compensation under the collective bargaining agreement, he ratified the contract's applicability.
Singh v. OMI Corp. 2001 WL 25701 (S.D. N.Y. 2001).
Court dismissed Jones Act and DOHSA for lack of jurisdiction. Singh Sidhu, a citizen of India, was serving as a cadet seaman on the defendant's Liberian-registered vessel M/T Elbe. He disappeared overboard off the coast of the United Arab Emirates and was presumed drowned. The M/T Elbe was owned by defendant, a Delaware corporation, with offices in New York. The ship's owner contracted with a Hong Kong corporation to provide crewing and management services. Singh Sidhu was hired by the crewing company as a cadet and assigned him to the M/T Elbe. Sidhu failed to report for duty while the vessel was anchored off the coast of the United Arab Emirates; he was last seen performing his duties around midnight of the night before. Neither he nor his remains were recovered and a Presumption of Death Certificate was issued by a Liberian authority. Defendant claims that plaintiff failed to show a sufficient nexus between his son's death and the United States for jurisdiction.
Using Lauritzen factors, the court dismissed claim. Only three factors supporting a connection to the United States: the United States supplied the law of the forum; defendant vessel owner had its base of operations in the United States; and, defendant was a United States citizen. Law of the forum given little weight because defendants had involuntarily been made a party. The remaining factors were dismissed because defendant vessel never called on ports in the United States during the period of plaintiff's son's employment. Court concluded there was no substantial contact between the incident and the United States.
Webster v. Royal Caribbean Cruises, Ltd., 124 F. Supp. 2d 1317 (S.D. Fla. 2000).
Nicaraguan seaman brought action against Liberian vessel owner to recover costs of preemployment medical examination. On owner's motion to dismiss, the court held that forum selection clause in employment agreement requiring disputes to be brought either in Norway or in seaman's country of domicile was enforceable. CRUISE SHIPS
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Boehnen, v. Carnival Cruise Lines, Inc., 778 So. 2d 1084 (Fla. App. 3d Dist. 2001).
Mentally handicapped woman sued defendant due to sexual assault and battery by crew member. As a result, she became pregnant and gave birth to a boy. Original and amended complaint dismissed by trial court. The court held that defendant could not shorten the three year statute of limitations period in 46 U.S.C. 763a for maritime injury action because she was a mentally incompetent person without a legal guardian. The court found 46 U.S.C. 183b(c) allowed a mentally incompetent person without a legal guardian, like plaintiff, to bring an action up to three years from the date of appointment of guardian that was appointed within 3 years.
Carnival Corp. v. Velchez, 2001 WL 219884 (Fla. App. 3d Dist. 2001).
A judge's prior comments about defendant's tactics in sexual assault cases did not disqualify her from hearing any other type of case against the cruise line.
Cismaru v. Radisson Seven Seas Cruises, Inc., 2001 WL 6546 (unpublished opinion) (Tex. App.Amarillo 2001).
Appeals court finds forum selection clause is not enforceable. Plaintiffs purchased tickets for a foreign cruise on defendant's cruise line. Part of the trip was across land. Plaintiffs claimed the travel accommodations were not satisfactory and that they were falsely imprisoned by representatives of the defendant. Plaintiffs sued in Lubbock County, Texas against both the cruise line and the travel agent through whom the tickets were purchased. Defendant sought to dismiss based on the forum selection clause in the ticket. Court finds forum selection claims fundamentally unfair because plaintiffs lacked the opportunity to reject the contract without suffering adverse consequence.
Enderson v. Carnival Cruise Lines, Inc., 2001 WL 114401 (W.D. N.C. Statesville Div. 2001).
Plaintiffs brought passage on a seven day cruise. During the cruise, one plaintiff developed appendicitis and had to undergo emergency surgery at a land-based hospital. Plaintiffs claimed defendants failed to provide adequate medical facilities and treatment on ship and to promptly transport the plaintiff to a hospital. Court granted defendants' motion to dismiss for lack of personal jurisdiction and improper venue. As usual, the ticket contained a forum selection clause. The court found plaintiffs were provided adequate notice of the clause. The court found that the forum selection clause was valid, enforceable, and fundamentally fair because cruise lines have special interests in 1) limiting the forum in which they may be subject to suit, 2) dispelling confusion, and 3) reducing fares.
Grivesman, v. Carnival Cruise Lines, 2001 WL 62580 (N.D. Ill. 2001).
Plaintiffs filed suit claiming poor service and delays ruined vacation aboard cruise ship operated by defendants. Court dismissed the action for improper venue, finding the ticket's forum selection clause to be clear and conspicuous. The ticket cover included a statement in bold type and all capitals directing holder's attention to the contract provisions. Plaintiffs received the relevant information more than a month before the cruise, in sufficient time to cancel the trip with little penalty. Plaintiffs also failed to show undue hardship. The expense and inconvenience of litigating the case in Florida were not enough to nullify the forum selection clause.
Licensed Practical Nurses, Technicians And Health Care Workers of New York, Inc. v. Ulysses Cruises, Inc., d/b/a Premier Cruises, 131 F. Supp. 2d 393 (S.D. N.Y. 2000).
Plaintiff union purchased tickets from defendant cruise line for 90 of its members, officials, and guests for a Caribbean cruise, intending to hold business meetings during the course of the voyage. Union brought suit in state court more than one year after incident. Defendant removed to federal court on diversity. Court dismissed claims because forum-selection clause on ocean cruise tickets was enforceable against purchaser; clause requiring that action be brought in Florida did not deprive court of jurisdiction over matter; and case was barred by time limitations. Ticket had usual one year time limit and forum selection clause. Plaintiff maintained that it is not bound by the provisions because it claims to be suing on a contract, separate from the tickets themselves, by which cruise line agreed to provide a conference facility. The court held that since the union purchased the tickets for its members they were bound by the ticket's terms; tickets reasonably communicated the time limitation.
Petitt v. Celebrity Cruises, Inc., 2001 WL 303810 (S.D. N.Y. 2001.).
Class action brought by passengers. During the cruise, plaintiffs and members of their group became ill. Subsequent to their return to the United States, they brought claims against defendants for negligence, breach of contract, and deceptive acts or practices in violation of New York and Florida consumer protection laws. Defendant moved for summary judgment; dismissal of plaintiffs' consumer protection claims; dismissal of motion for class certification. Motions for summary judgment and to dismiss granted. Plaintiffs did not present any concrete evidence that could lead a jury to conclude that their illnesses were due to defendant's negligence. Breach of contract claim dismissed because plaintiffs neither point to a contract, nor a specific provision, that was allegedly breached.
Rockey v. Royal Caribbean Cruises, Ltd., 2001 WL 420993 (S.D. Fla. 2001).
Plaintiffs were on defendant's vessel when plaintiff was struck in the head by an electronic bingo board. Plaintiff could maintain negligence claim because genuine issue of material fact existed as to whether defendant created a dangerous and hazardous situation with the bingo board sufficient to constitute a breach of its duty of reasonable care. Plaintiff could also plead res ipsa loquitur because a material issue of fact existed as to whether defendant had exclusive control over the bingo board at the time of the incident. The court granted defendant's motion to dismiss plaintiff's breach of contract claim holding the law of admiralty will not imply a warranty of seaworthiness and will not support a breach of contract action unless there is an express provision in the contract of carriage guaranteeing safe passage.
Tateosian v. Celebrity Cruise Services, Ltd., 768 A.2d 1248 (R.I. 2001).
Passenger and her husband brought negligence action against cruise company more than one year after incident. Claims dismissed as time barred. The Rhode Island Supreme Court held that the shortened time-limitation period and forum selection clauses of cruise contract were valid, as warnings on the embarkation coupons were sufficiently obvious to provide notice; the time limits were reasonably communicated to passengers; plaintiffs were alerted to the importance of reading the contractual terms before signing the embarkation coupon and had the opportunity to reject the contract terms without incurring any financial penalty. PRACTICE AND PROCEDURE
Black v. Avondale Industries, Inc., 2001 WL 300248 (La. App. 5th Cir. 2001).
Security guard, assigned by her employer to work at shipyard, was attacked by intoxicated sailor. Appeals court finds shipyard owner's duty to exercise reasonable care for safety of persons on premises did not extent to protection of guard against attack at shipyard by intoxicated sailor.
Blythe v. Torch, Inc., 2001 WL 40893 (E.D. La. 2001).
On December 6, 2000, plaintiff and defendant attended a settlement conference before a federal magistrate judge. After approximately 3.5 hours of negotiations, the parties agreed to settle plaintiff's Jones Act claim for $425,000 The agreement was reduced to writing and signed by the plaintiff, his counsel, and defendant's counsel. On December 7, 2000, plaintiff advised his counsel that he wished to repudiate the settlement agreement, alleging he was pressured into signing it and he believed the agreement was revocable within 48 hours. After the parties reached a $400,000/$450,000 split and after discussions with his attorney, plaintiff extended a settlement offer of $425,000, which defendant agreed to pay. "In light of the fact that Blythe received only $25,000 less than his final demand, the Court finds that the negotiations were conducted at arms-length and in good faith." As to the 48 hour claim, plaintiff's "attorney did not advise him of this so-called right, and at no time during the negotiations did Blythe ask about this right or mention that he believed it existed. In fact, Blythe's attorney advised him that by accepting the offer he would be conclusively settling all his claims against Torch." Finally, Plaintiff was not coerced into settlement. "In light of the facts that Torch accepted Blythe's own offer, that Blythe considered the final agreement for at least 30 minutes, and that the final agreement was confected after a 3.5 hour settlement conference before a federal magistrate judge, the Court cannot find that Blythe was coerced into releasing his claims."
Buskie v. Murphy Explorations and Production, Co. 2001 WL 224786 (E.D. La. 2001).
Defendant's motion for summary judgment that it cannot be held responsible for the negligent actions of an independent contractor over which it retained no operational control is denied. Plaintiff worked for independent contractor and was injured while in the process of performing repairs to defendant's offshore well jacket. Work was being performed on back deck of the vessel which transported him to the jacket. Court holds defendant, as principal, is liable for its own acts of negligence; that defendant was responsible for loading the materials used for the repair jobs onto the vessel and taking the scrap pieces and other junk off the vessel after the repair job. Prior to the day of the incident, defendant had not removed all materials from vessel's deck and other material was stacked, causing it to rest at an unusual angle; defendant's safety man denied plaintiff's request that they delay repair activities until the seas, which reached five feet that day and made footing difficult, calmed; and failing to provide mechanical assistance for moving large material, as was customary.
Cameron v. United States, 135 F. Supp. 2d 775 (S.D. Tx. 2001).
Plaintiff slipped and fell down stairs while cleaning fuel oil spill in vessel engine room. Plaintiff claimed stairway unsafe since the steps and handrails did not have any non-skid material. Plaintiff was partially at fault for failing to take special precautions when he knew the stairs were covered with oil. Court found stairway was unsafe and vessel unseaworthy.
Debellefeuille v. Vastar Offshore, Inc. 2001 WL 422718 (S.D. Tex. 2001).
Defendant's motion for jury trial in personal injury action pursuant 33 U.S.C. 905(b)(LHWCA), 43 U.S.C. 1333(OCSLA), and under the general maritime law granted. Plaintiff injured during transfer from vessel to platform. Defendants are platform owner, vessel owner, and crane owner. Maritime cause of action brought against vessel owner only. Defendant crane owner is allowed jury trial. The non-admiralty defendants in this matter are not joined on the basis of savings clause diversity, but are instead subject to federal question jurisdiction, therefore allowing a jury.
Esparza v. Skyreach Equipment, Inc., 15 P.3d 188 (Wash. App. Div. 1 2000).
In matter of first impression, the court found the LHWCA preempted allocation of liability to worker's employer. Plaintiff was in a manlift painting a ship when the manlift tipped over, causing him to fall approximately 50 feet to a steel dry dock deck and injuring him severely. Plaintiff sued defendant, the company that rented the manlift to his employer, claiming defendant negligently failed to inspect and test a safety component on the manlift that would have prevented the tip-over if it had been working properly. After the accident, it was discovered that the manlift's circuit cards had been damaged by an excessive dose of electrical current, causing the load management system to fail to automatically stop further ext. of the boom before the manlift could tip over. After the jury returned its verdict, the trial court struck the jury's allocation of fault to plaintiff's employer.
Fitzpatrick v. Arco Marine, Inc. 2001 WL 345210 (C.D. Cal., 2001).
Plaintiff move to compel enforcement of non-party subpoena in maritime personal injury case. Court ruled charterer of oil tanker, which was not a party to suit, would not be compelled to deploy vessel's accommodation ladder in the manner it was deployed when plaintiff was injured, and to allow plaintiff to photograph and videotape the ladder, where plaintiff made only a weak and conclusory showing of need for the inspection, and charterer made a significant showing of the burden which would be created by the inspection in terms of interference with ship operations and safety requirements.
Fortenberry v. Atwood Oceanics, Inc. 2001 WL 121902 (E.D. La. 2001).
Plaintiff sought production of videotape from defendant. "Atwood, presumably covertly, videotaped Fortenberry in order to demonstrate his physical abilities and/or lack of physical impairment.'" Plaintiff argued tapes should be excluded as having no probative value because he has already admitted that he walks without a limp unless strenuous activity causes pain and that he has been working at a construction site. Alternatively, he argued that they should be excluded because they were not produced in discovery. "The Court agreed with defendant that the tapes constitute substantive evidence of plaintiff's claims and, therefore, are relevant. The Court has absolutely no way, however, to evaluate whether these tapes were produced in discovery. The Plaintiff says they were not, the Defendant says they were. Since Fortenberry knows about the tapes, the Court assumes that they were produce at some point, but, as the party seeking to introduce the tapes into evidence, Atwood bears the burden of establishing their admissibility. Atwood, therefore, should be prepared to prove to the Court that the tapes were produced."
Fulop v. Ocean Hope 1 F/V, 243 F.3d 547 (9th Cir. 2000) (unpublished opinion)
An award for future medical expenses cannot be reduced by the amount of seaman's contributory negligence, where the medical expenses are in the nature of cure, rather than for mere future expenses based on a negligence remedy. Further, travel expenses for the seaman to travel from his home in Seattle to Southern California to visit a psychiatrist were not allowable because he failed to minimize his cure expenditures.
Gould v. M/V Golden Destiny, 2001 WL 435588 (E.D. La. 2001).
Defendant's summary judgment as to negligence denied. Plaintiff, a veteran Mississippi river pilot, injured while leaving vessel to transfer to launch. Plaintiff alleged vessel owners were negligent for failing to properly escort him from the ship.
Guyton v. Pronav Ship Management, Inc. , 2001 WL 403177 (S.D. Tex. 2001).
Seaman brought action against Delaware ship operator and ship owner under Jones Act and general maritime law to recover for injuries sustained while working at sea. Jurisdiction found against vessel operator. Plaintiff, SIU member, was a permanent member of a "rotation list" for operator; had worked for considerable amount of time for operator; SIU acted as agent for operator.
Harper v. Falrig Offshore, Inc., No. 00-694, 776 So. 2d 620 (La. App. 3d Cir. 12/20/00).
Plaintiff was asked to weld a rain shield on defendant's oil rig. He was on a ladder, reaching for a sledge hammer which was being handed to him from above, when he fell and broke his heel bone and injured his back and neck. Plaintiff filed suit against defendants alleging unseaworthiness and negligence under the Jones Act. The trial court assessed 75 percent fault to plaintiff and 25 percent fault to defendant, and awarded plaintiff medical costs, general damages, loss of household services, and lost wages. Court of appeal found that an unsafe work method which partially caused plaintiff to fall was an isolated incident of operational negligence, not a pervasive condition which rendered the rig unseaworthy. The trial court's findings of fault were not manifestly erroneous. The general damages award was not an abuse of trial discretion. The trial court's future wage loss calculation was in error because it was not based on plaintiff's gross wages at the time of his injury. The trial court also erred in allowing plaintiff to sue defendant insurer under the direct action statute, because the rig was not in Louisiana waters.
Holton v. S & W Marine, Inc., 2000 WL 1693667 (E.D. La. 2000).
Defendant ordered to produce witness statement. After in camera inspection, production ordered. The statement is undiscoverable work product only if the defendant can show it was "prepared in anticipation of litigation." Defendants failed to prove the statement was prepared in anticipation of litigation. "Defendants do not demonstrate how the release of an eye-witness's statement, taken by a third-party investigator who was hired by an insurance company but is not an attorney, will cause inefficiency and unfairness in future legal proceedings. A third-party insurance adjustor attempting to ascertain exactly what happened from eye-witnesses is not in the same position as an attorney. . . Of course, this is not to say that a statement given to a non-attorney cannot be protected under Rule 26(b)(3). . . Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other non-litigation purposes are not privileged work product. . . However, there is a vast difference between the investigation of the death of an employee, which is an extraordinary and tragic event, and the investigation of a non-life threatening injury on a barge, which is a fact of life for vessel owners and their crew members. In the present case, the facts do not point to inevitable litigation or even that the defendants were paying specific attention to prospective litigation when [the] statement was taken. . . The collection of [the captain's] statement during the ordinary course of business need not raise the protections afforded to attorney work product despite defendants' claim that prudent parties anticipate litigation and act with that possibility in mind. Defendants' assertions cannot protect the witness's statement from discovery absent a showing that their investigations were conducted primarily for the purposes of future litigation and outside the ordinary course of investigating a potential insurance claim."
Hood v. Regency Maritime Corp. 2000 WL 1761000 (S.D. N.Y. 2000).
Court rejects plea of res ipsa loquitur. Plaintiff struck by a part of a bath tub while aboard defendant's cruise ship. Court finds shipowner is responsible for defective conditions aboard ship only when it has actual or constructive notice of them. Only those risks peculiar to sea travel can, sometimes, impose a heightened duty of care on carriers. Therefore, the duty of care imposed on such carriers is the "reasonable care under the circumstances" standard. Being struck by a "portion of the tub" is not an incident uniquely encountered while at sea. Further, res ipsa loquitur rejected because there was no proof defendant had exclusive control over the thing that caused the injury.
Hurd v. United States, 134 F. Supp. 2d 745 (D. S.C. 2001).
Parents of teenage boys lost at sea brought claims against Coast Guard. The district court held Coast Guard's termination of search, after receiving pre-dawn negative report from boat sent to investigate report of someone yelling for help in water, was reckless and wanton conduct which proximately caused plaintiffs' decedents' injuries and deaths; wrongful death damages included non-pecuniary losses of $6,000,000 per child; and survivorship damages were $300,000 per child.
A father, his son, and cousins were sailing. Father fell overboard. One of the children radioed a distress call to the Coast Guard and a passing boat radioed it thought it heard screaming from the water. The Coast Guard ignored the distress call from the child, thinking it was a prank. The private boat went to investigate the screams, but Coast Guard did nothing after a private boat reported back it could not find anything. Everyone drowned. The court found the Coast Guard had initiated a rescue when it instructed the private boat to investigate the screams, and was negligent in calling off the search after no one was initially located. The Coast Guard's actions were wanton and reckless, and worsened the position of the children by inducing the private boat to cease its efforts. The defendant's actions did not fall within the scope of the discretionary function exception to the Suits in Admiralty Act, 46 U.S.C. 741-752.
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In The Matter of the Complaint of Hygrade Operators, Inc. and Spentonbush/Red Star Co., Inc., 2001 WL 225028 (S.D. N.Y. 2001).
Plaintiff was injured when he fell backwards after forcing a stuck valve closed. He reinjured the knee one year later. A year subsequently, he returned to work on light duty, part-time basis. We was then terminated. He thereafter sought medical treatment for back pain he claimed was related to his first accident. The court found that plaintiff did not prove his injury resulted from any negligence by defendant. However, the stuck loading valve did make the vessel unseaworthy, and that unseaworthiness caused claimant's injury. Plaintiff entitled to compensation for the damages he sustained as a result of the injury. However, the court found plaintiff 50% at fault and he failed to mitigate his damages by seeking other employment. Plaintiff also did not prove his back injury was the result of his 1997 injury and, thus, the court denied all damages associated with the back injury.
In the Matter of the Complaint of Pride Offshore, Inc. 2001 WL 13336 (E.D. La. 2001).
Employer filed declaratory judgment in federal court. Dismissed by court as forum shopping. Seaman injured when he fell down a flight of stairs located on a MODU. He was a resident of Alabama. After the incident, employer's claims manager wrote to an investigator hired by seaman's counsel asking the investigator not contact employer's employees and that the investigator have plaintiff's counsel forward a letter of representation. This indicated employer knew plaintiff had retained counsel and intended to pursue his legal remedies.
Thereafter, employer filed declaratory judgment complaint, seeking declaration because of material misrepresentations made by seaman in his pre-employment physical, he is not entitled to maintenance and cure and that he is not a seaman. Further, employer claimed MODU was not a vessel and therefore OCSLA controlled. Alternatively, limitation claimed.
Before the waiver of summons was received by the seaman in the declaratory action, he filed a Jones Act, general maritime law, and maintenance and cure suit in Texas state court, without a jury request.
Jackson v. OMI Corp., 245 F.3d 525 (5th Cir. 2001).
Seaman who tripped over doorway coaming brought an action claiming the vessel was unseaworthy due to lack of handhold. Court of Appeal reversed district court and found for defendant.
Knarr v. Chapman School of Seamanship, 2000 WL 1886577 (E.D. Pa. 2000).
Defendant filed summary judgment. Plaintiff was a student at defendant's school. Before beginning her classes, she signed an agreement to indemnify defendant for any suit or claim arising from the use of defendant's equipment. After her first lesson aboard the defendant's vessel, while disembarking from the ship, she fell on one of wooden ladder steps on the vessel. To stop her fall, she attempted to reach for a railing on the right side of the ladder, but there was no railing on the right side of the ladder. The court ruled the indemnification agreement signed by plaintiff could protect defendant from liability arising from mere negligence. However, under Florida law, the agreement could not protect defendant from claims arising from negligence per se, which requires a violation of a statute, ordinance, or regulation. Plaintiff was unable to establish such a violation.
Moore v. Iron Will, Inc., 2001 WL 228352 (S.D. Ala. 2001).
Plaintiff was employed as a deckhand on shrimp trawler by the Defendant. While the plaintiff was performing or attempting to perform what the court termed his "assigned chores" in the "course of his normal duties," he suffered injuries to his left hand. These chores were described as "he used the cathead to pull a net from the water, and his hand was pulled into the winch drum. Plaintiff was an experienced deckhand and had worked with winches and used catheads to pull in nets many times before being hired to serve on this vesselit was something he did all the time" on his previous jobs.'" The court also concluded "Plaintiff's hand was injured through his own fault and not because of any negligence of the vessel or the crew." Case dismissed on summary judgment.
Morales v. A.C. Orssleff's EFTF, 246 F.3d 32 (1st Cir. 2001).
Harbor pilot fell as he was disembarking from vessel and boarding pilot boat. Plaintiff claimed defendant was negligent for failing to turn the vessel perpendicular to the waves as requested in order to minimize pitching on the leeward side of the boat from which plaintiff was disembarking, that the rope ladder used to exit the vessel was not in a safe position, and that the area was not properly illuminated. On the basis of facts deemed admitted because they were not controverted by the plaintiff, the district court held that the sole cause of the accident was plaintiff's own negligence. Paris v. Waterman Steamship Corp., 721 N.Y.S.2d 514 (Mem) (N.Y.A.D. 1st Dept. 2001).
Plaintiff seaman sued defendant ship owner for personal injuries. Plaintiff moved to amend complaint so as to allege failure to treat and for compensatory and punitive damages. The court denied the amendment because a prior order of the court specifically rejected plaintiff's claims for compensatory and punitive damages because plaintiff failed to plead the damages but also because the claim had already been previously dismissed. The court also held plaintiff's claim seeking to obviate the $8 a day rate for maintenance and cure in his union's collective bargaining agreement was improperly raised for the first time on appeal and therefore dismissed.
Penski v. Jarriel, 2001 WL 65695 (D. Del. 2001).
Defendant's summary judgment granted where plaintiff unable to prove negligent entrustment of recreational vessel by boat owner. Plaintiff contended operator had limited experience with the navigational equipment on the vessel. Facts indicate that operator was a licensed, qualified, and experienced captain who had operated the boat involved in the accident before and was familiar with its instrumentation.
Richoux v. R & G Shrimp Co., 126 F. Supp .2d 1007 (S. D. Tx. 2000).
Plaintiff seaman was injured off the coast of Galveston, Texas. Plaintiff brought an admiralty claim under the Jones Act. Defendant's motion to Dismiss for Improper Venue and Motion to Transfer Venue denied. Venue in Southern District is proper, but defendant wants the case in Victoria Division rather than Galveston Division, which would mean a change of judges. "Defendants are incorrect in assuming that venue in admiralty is tied to districts, much less divisions within districts." Venue in admiralty lies in any district where the Court has personal jurisdiction; venue in admiralty is broader than districts, not narrower. Review of transfer factors unavailing.
Schuppman v. Port Imperial Ferry Corp., 2001 WL 262687 (S.D. N.Y. 2001).
Seaman's suit for retaliatory discharge dismissed on summary judgment. Seaman was fired 18 months after filing a Jones Act claim. Court found seaman did not prove decision was motivated in substantial part by the knowledge that the seaman either intended to file, or had already filed, a personal injury action against the employer. Also, seaman failed to prove disparate treatment as circumstantial evidence of retaliation.
Simenoff v. Hiner, 249 F3d 883, (9th Cir. 2001).
Seaman sustained foot injuries while crab fishing on commercial vessel. The Court of Appeals held a seaman may not be held contributorily negligent for injuries sustained while carrying out orders that result in injury, or while responding to a superior's urgent call to the crew for help. Engineer called to the crew for assistance in performing equipment repair. Plaintiff was injured while assisting engineer.
Smith v. Mitlof, 130 F. Supp. 2d 578 (S.D. N.Y. 2001).
Defendant operated water taxi service on the Hudson River serving Tarrytown, Nyack and Pierpont, New York. On August 23, 1998, vessel capsized. One passenger died. Vessel's prior owner had the boat certified by the Coast Guard to operate out of Norwalk, Connecticut and carry a maximum of 21 persons. Defendant purchased vessel in June 1998. Plaintiffs allege that defendant failed to obtain a new certificate of inspection after purchasing vessel and that he operated the boat without a valid certificate or operated vessel in violation of certificate. Court granted plaintiffs summary judgment under the Pennsylvania Rule, finding that since defendant violated navigation statute and Coast Guard regulations, it bears the burden of proving not only that the violation did not cause or contribute to the casualty, but that the violation could not have caused or contributed to the casualty.
United States v. Martin 2001 WL 122224 (E.D. Pa. 2001).
Vessel owner filed declaratory judgment in Pennsylvania, injured seaman's domicile. Seaman filed suit in Texas under Jones Act. Jones Act suit dismissed for lack of jurisdiction and improper venue. Vessel owner then filed for declaratory judgment in federal court in Pennsylvania, seeking a declaration that it owed no more maintenance and cure payments to defendant. One month later, seaman sued defendant in Texas under the Jones Act, claiming Texas was his home. He then moved to dismiss or to transfer venue from Pennsylvania. Motion denied. Venue was proper in the district where the vessel owner resided. Since both cases concerned seaman's maintenance and cure, he was enjoined from pursuing the Texas action.
Woodward v. Nabors Offshores Corp. 2001 WL 13339 (E.D. La. 2001).
Plaintiff was employed by defendant as a roustabout on defendant's offshore oil rig. After plaintiff was injured on the job, his counsel hired a private investigator. The investigator took a statement from one of the defendant's employees, who was plaintiff's immediate supervisor. Defendant seeks the statement and a protective order prohibiting plaintiff's counsel from any further ex parte contacts with its current employees. The Court found the employee is defendant is entitled to receive his statement under Fed.R.Civ.P.26(b)(3).
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